DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4349)

BK COMMERCIAL CAULKING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 APRIL 2021

Application for approval of the BK Commercial Caulking Pty Ltd and CFMEU Union Collective Agreement 2020–2022.

[1] An application has been made for approval of an enterprise agreement known as the BK Commercial Caulking Pty Ltd and CFMEU Union Collective Agreement 2020–2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 April 2021. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for a collective agreement entered into with BK Commercial Caulking Pty Ltd for the period 2020 to 2022. The Fair Work Commission (FWC) was the tribunal that considered the matter, with the CFMEU making the application for approval. The dispute centred on whether the collective agreement met the criteria set out in the Fair Work Act 2009, specifically regarding the application of the ‘better-off-overall test’ and the absence of any terms that might unfairly disadvantage employees.

The primary legal issue before the FWC was to determine whether the collective agreement fulfilled the statutory requirements for approval under the Fair Work Act. This included assessing if the agreement was in the public interest and whether it complied with the ‘better-off-overall test’, which mandates that employees should not be worse off overall under the terms of the agreement. Additionally, the FWC had to consider if there were any provisions in the agreement that could unfairly prejudice employees.

The FWC found that the collective agreement met the statutory criteria for approval. The Commission concluded that the agreement was in the public interest and did not include any terms that would unfairly disadvantage employees. The CFMEU had demonstrated that the agreement was better off overall for the employees, as it provided various benefits such as improved wages and working conditions. The FWC noted that the agreement contained no terms that would unfairly prejudice employees, and therefore, it was appropriate to approve the collective agreement.

Consequently, the Fair Work Commission approved the collective agreement between BK Commercial Caulking Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union for the period from 2020 to 2022. This decision confirms the agreement as a legally binding contract between the employer and the union, subject to the terms and conditions outlined.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established